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Hello - Last Friday I received a phone call from my Sales…

Customer Question

Hello - Last Friday I received...

Hello -Last Friday I received a phone call from my Sales Manager informing me that I was fired becasue I "fell asleep" (perhaps "nodded off") at an all day business meeting on June 28. There were 2 prior incidents of this over the past 14 mos. where I received verbal warnings for similar actions.

I have never received a written reprimand nor a performance evaluation with the company which is based in Wisconsin. I live in PA and the incident happened in MA.

I am a sales rep that covers a 6 state territory and travels 3 - 7 hours between meetings. There is no union involved. I did sign an Employment at Will statement when hired in April 2010.

I contact HR and was told that all I could do was to file a federal FMLA request if my issue was related to a medical condition. It may be. I have been taking 4 prescription drugs that may cause drowsiness or insomnia for the past 6 months. I have a Dr's exam set for July 5 and must respond by July 11 when the HR director returns from vacation.

I really suspect that firing was to allow my manager to hire another person she just met last week and who is geographically closer to the center of the business development.

Are there any grounds for me to fight this action except for provisions under the FMLA guidelines (Family Medical Leave Act)

OK, I realize your HR urged you to seek FMLA coverage - however, that seems inappropriate (unfortunately) at this point, because you are no longer employed by the employer AND, you did not take a leave for which FMLA would have covered. However, I wonder if they are trying to cut you a break, but indicating that if you can show that you fell asleep due to medical problem, they will consider taking you back if you can be accommodating to prevent that sleeping on the job in the future. So it may be worth jumping those hoops if you still think this is a good job for you.

In the future, however, I would think that if you have a sleeping disorder, you may be able to get it thoroughly documented by your doctor and how you will need "breaks" at odd times to rest, to prevent sleeping on the non-break job times. These breaks could be FMLA on an intermittent basis, and if they are relatively short, it may take a very long time to come close to using up your 12 weeks per year - and so it could become a regular course for you.

But remember, you need to get the medical proof from your doctor - his medical opinion that you need X intermittent time off, for your medical condition - you may be able to get it.

Good luck!

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Customer reply replied 7 years ago

Hmmm... The HR person verbally postphoned my "fireing" until I submit the FMLA paperwork on July 11.

I thought that you would address the due process of the issue in relation to the Employment at Will agreement signed when I was hired 14 mos. ago. Are there not acceptable employment termination practices that specify due process requirements in the workplace that are argueable in a court of law if I were to pursue the issue with a lawyer in a legal action?

Hmmm... The HR person verbally postphoned my "fireing" until I submit the FMLA paperwork on July 11.That is terrific - that means you are NOT yet fired.

I thought that you would address the due process of the issue in relation to the Employment at Will agreement signed when I was hired 14 mos. ago. No, there is no "due process" issue, unfortunately, in Wisconsin.

Are there not acceptable employment termination practices that specify due process requirements in the workplace that are argueable in a court of law if I were to pursue the issue with a lawyer in a legal action? No, not at all. At Will means without good reason or any reason and without notice. An employer need not give you notice - they can fire us on the spot. They don't even have to do it for a decent reason. Moreover, in WI, we are automatically "at will" unless we have a written contract to the contrary (such as one that says, we can not be fired except for good cause, OR, one that says, we agree to work for 5 years at X pay). There is no such thing as a 'due process' requirment between employer and employee for termination purposes, unfortunately. For instance, lets say you employ a babysitter for your child. She comes every afternoon from 3-5, when you get home from work. One day a new babysitter comes to town and you want to use her. You call your current baby sitter and tell her you don't need her to babysit for you anymore, starting today. This is entirely legal and you didn't have to give her notice, or due process rights to defend herself, of any kind. Doesn't make your actions kind, compassionate or fair - but they are legal under current law. No law prohibits that termination.

Feel free to ask for clarification, if any of this remains unclear, I am happy to explain further if you need. As for FMLA, consider getting your doctor's note describing how you needed intermittent (or more) medical leave periodically, X times per week or month, due to XYZ, due to fatigue etc. Your employer has provided an unusual extra opportunity after the fact, for you to retroactively FMLA this, which is wonderful. Good luck!

I hope this helps clarify for you.

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Customer reply replied 7 years ago

Thank you. You did clarify the "At Will" and Due Process issues very well (unfortunately).

One last question if I may. After I submit my FMLA form requesting some accomodations (ie. continued medical monitoring of my condition, no long drives or sitting for more that 1 hour, etc) Does the employer have to accept it or can they disagree and still "fire" me?

Thank you. You did clarify the "At Will" and Due Process issues very well (unfortunately). You are welcome. And I agree, often the state of the law in this area is "unfortunate" for the good employees.

One last question if I may. Certainly. After I submit my FMLA form requesting some accomodations (ie. continued medical monitoring of my condition, OK, you need to make sure you are not confusing FMLA with ADA 'reasonable accommodation'. For the former, you are merely allowed unpaid time off for your medical requirement - for you, perhaps that means, sporadic 'hour' here or there, when sleep oversomes you (could you have narcolepsy? I recently had such a client) - and your doctor must indicate it is necessary leave. That would be "intermittent"

no long drives or sitting for more that 1 hour, etc) Does the employer have to accept it or can they disagree and still "fire" me? These are more like ADA accommodation requests - and they only need to be granted IF you have a recognized disability under ADA and if you can do the essentials of your job that you can't otherwise do without the accommodation, AND, it must be a "reasonable" accomodation (not an unreasonable or overly expensive or burdensome one). If you are a traveling salesperson, for instance, and you no longer want to travel, it is not clear to me that you could get this, because if traveling is an essential, getting your accomodation would still mean you are not doing an essential. If traveling is an essential of your job.

Sitting for more than 1 hour? Depending on your job, is it not doable to stand? So perhaps all you need is the accomodation of allowing you to stand, from sitting, as needed or at least every hour. As a sales person, I can't imagine that would be a problem, since you are fairly independent in whether you sit or stand, presumably. Perhaps all you need, too is the "right" to stand during the meetings (the ones where you nod off), to prevent the falling asleep issue.) But remember that for the right to a reasonable accomodation you must first have an ADA recognized disability. I would think there would be a way to establish that an unpredictable curse of falling asleep at a moments notice, not due to partying all night, could possible be one - since it seems to prevent a major life's function (being conscious when choosing to). But, it is an issue you should research. http://www.eeoc.gov -- scroll down and look under "disability."

The employer can certainly disagree - remember that the accommodation must be "reasonable" and must not be overly burdensome on the employer. But you need not agree with them and you can always file a charge against them and see if you win.

For instance, if you told them you wanted a full time driver for the long trips, that may be overly burdensome. Each case is 'case by case'. But if you just said, you need more time to do the drive, because you need to stop every 2 hours for 20 minutes, that may be reasonable.

Is there any federal protection under FMLA that I can use? FMLA is a federal law, so yes. Here is the Code of Federal Regulations that you want to read: CFR

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).